You Might Have Missed: Targeted Killings, Syria, and Military Contractors

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While the Army’s primary mission remains its ability to fight and win the nation’s wars, this new model places greater emphasis on those areas “left of the bang.” Training will enable soldiers to prevent and shape so they don’t have to fight and win, especially if that fight may become a large-scale conflict a cash-strapped Army is not equipped to fight. In the words of one commander, the “battle is to prevent battle.”

The results of a recent New York Times/CBS News poll show that a majority of Americans believe that the federal government should extend benefits to gay couples who are legally wed, and many people continue to oppose military intervention in Syria.

Do you think the United States should or should not take the leading role among all other countries in the world in trying to solve international conflicts?

Do you think the United States has a responsibility to do something about the fighting in Syria between government forces and anti-government groups, or doesn’t the United States have this responsibility?

COLLINS: Mr. Attorney General, it troubles me that the president has virtually unreviewable, unfettered authority to order the killing of any American citizen overseas who is suspected of terrorist activity without any kind of charge, or trial, or judicial review. We’ve all read this morning of the controversy over the NSA having access to phone records of American citizens. It seems to me that an American currently receives a greater degree of due process protections from the judicial branch of the government is seeking to listen in on his phone conversations, or get information about his phone conversations, than if the president is seeking to take his life?

That just doesn’t make sense to me. Why hasn’t the administration proposed to congress, a process that would provide some degree of independent judicial review for a targeted lethal strike against a U.S. person overseas? Something — either an expansion of the FISA Court, or a different kind of classified proceeding before a court to ensure that there’s some kind of judicial review, rather than vesting that authority to take a life, and American life I’m talking about overseas, only in the president?

HOLDER: With all due respect, I would say that it’s incorrect to say that the president has unlimited authority in this regard. With regard to the use of drones. And we are talking about being more transparent. I sent a letter to Chairman Leahy, the president gave a speech to make more transparent our efforts in this regard. But we operate under the statute that Congress passed, the authorization for the use of military force. And we also, when we are dealing with these matters, try to focus on capture where possible. We focus on whether or not the threat is eminent.

We also operate under the rules of law. And as the president said I think in his speech, people cannot plot against the United States. People cannot kill American citizens and then use as a shield their American citizenship. These are steps that we take with great care. They are the most difficult of decisions that we have to make. They are the things that keep me up at night, as I think about my role as part of the national security team in discussing these matters. The concerns your raise, I understand. They are legitimate ones. But we are working within the administration to make sure that when we take these ultimate measures, they are done in appropriate ways, that they are done in legal ways, and that they’re also done in a way that’s consistent with our values.

COLLINS: …Let me turn to a second point that you just made about a preference for capture. I haven’t seen a preference for capture.If you compare the number of terror suspects that are captured in the previous administration versus this administration, there’s a huge difference, as there is in the number of lethal strikes with drones that were undertaken. Is the reason for the exceedingly low number of captures due to the change in the Obama administration’s position on detention? And the fact that the administration does not want to send captives to Guantanamo? Isn’t that really the reason? I mean here we have a case of the terrorist, Warsame, who ultimately was convicted, but who was driven around on a Navy ship for two months because there really was no place to put him?

HOLDER: No, it is not a function of not trying to take people to Guantanamo. As you indicated, Warsame was captured, Abu Ghaith was captured and brought to face justice in an Article 3 court. The desire to capture is something that is something that we take seriously because we gain intelligence.

Nevertheless, both the Bush and Obama administrations decided that the 2001 authorization (the AUMF, for short) covered any group affiliated with Al Qaeda that plans operations against the United States or U.S. interests abroad.

In many cases, that’s a reasonably clear standard. When Al Qaeda’s Yemen affiliate put a terrorist with explosives in his underwear on a flight to Detroit, the target was plainly the U.S.

But other cases are more ambiguous. Does the Shabab militia in Somalia qualify? They are Islamic terrorists and a danger to East Africa, but they pose little threat to the United States. Does Ansar al Sharia, the group that attacked a U.S. mission in Libya last year but has loose ties to Al Qaeda, fit in? What about Al Nusra Front in Syria, a group born as part of the uprising against Bashar Assad?

McRaven’s Socom 2020 vision calls for a globally networked force of special operations forces, interagency representatives, allies and partners, with aligned structures processes and authorities to enable its operations. Globally networked forces, he said, will provide geographic combatant commanders and chiefs of mission with an unprecedented unity of effort and an enhance ability to respond to regional contingencies and threats to stability.

Overall, staff sizes of major US military commands grew by 15 percent from 2010 to 2012, despite then-Defense Secretary Robert Gates’ call to reduce staff sizes as a way of cutting redundancy and saving money.

The evidence considered by the Subcommittee and presented in the Commission on Wartime Contracting report was persuasive that commanders do not have the ability to effectively control contractor misconduct, or sanction misconduct. Commanders must have control of their battlespace and the necessary tools to apply consistently both the rules of engagement and battlefield ethics. Presently, commanders do not have sufficient authority to adequately handle alleged contractor misconduct relating to civilian casualties. Commanders have some authority over contractors who are serving with or accompanying an armed force in the field, but that authority is effectively withheld at SecDef level.

The Subcommittee concludes that presently, commanders do not have adequate control over all contractors acting within their battlespace. The UCMJ provides jurisdiction over “persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands,” subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law.

It also provides jurisdiction over “persons serving with or accompanying an armed forces in the field” in time of declared war or contingency operations. These provisions provide some jurisdiction over contractors, but limit it to instances where contractors are serving with, employed by, or accompanying armed forces. Many contractors in today’s battlespace may have an agreement with the United States to operate in the operational environment, but are not serving with, employed by, or accompanying the armed forces. These contractors currently fall outside of the purview of the military justice system. To the extent that they may come within the jurisdiction of DOJ under MEJA, jurisdiction is limited to felonies and its exercise can be cumbersome. Accordingly, the Subcommittee recommends that Article 2, UCMJ, should be amended to allow for jurisdiction over all U.S. government contractors on the battlefield, regardless of U.S. government departmental affiliation.

Opinions expressed on CFR blogs are solely those of the author or commenter, not of CFR, which takes no institutional positions.